2015 Supreme(Del) 497

High Court of Delhi
MANMOHAN, J.
M/s. Aresko Restaurant Pvt. Ltd. & Another – Appellant
Vs.
New Delhi Municipal Corporation & Others – Respondent
CS(OS) No. 618 of 2015
Decided On : 10-04-2015

Headnote:

LICENCE - RENEWAL - DISCRETION OF LICENSOR - NO VESTED RIGHT - POLICY GUIDELINES - INCORPORATION BY REFERENCE - IMPLIED CONDUCT - ESTOPPEL - PUBLIC PREMISES (EVICTION OF UNAUTHORIZED OCCUPANTS) ACT, 1971 - SECTION 54 OF THE EASEMENT ACT, 1882 - SPECIFIC PERFORMANCE - DAMAGES - INJUNCTION - SECTION 141(2) OF THE NEW DELHI MUNICIPAL COUNCIL ACT, 1994 - INTERPRETATION - PUBLIC AUCTION - TRANSPARENCY - FAIR COMPETITION - TRANSFER - WIDE AMPLITUDE - POLICY - VALIDITY - CONFORMITY WITH STATUTE - PRECEDENTS - RATIO DECIDENDI - ARTICLE 141 OF THE CONSTITUTION OF INDIA.

Fact of the Case:

Plaintiff, a licensee of NDMC restaurant, sought declaration, permanent and mandatory injunction for renewal/extension of licence for 10 years with 10% enhancement of licence fee every year. Plaintiff claimed vested right to seek extension/renewal in terms of Clause 1 of the Licence Deed and relied on NDMC Estate Policies of 1999 and 2000, Section 54 of the Easement Act, 1882 and file notings of NDMC officials. Defendant-NDMC contended that decision not to renew licence beyond 4th July, 2013 was taken by its highest authority, the Council, in exercise of its power under Section 141 of the NDMC Act, 1994 and that public auction was the only means to maximise the consideration.

Finding of the Court:

1. Clause 1 of the licence deed confers absolute discretion upon the licensor-NDMC to decide whether to renew the period of licence or not. 2. Renewal clause in the present case and that of M/s. Gesture Hotels and Foods Pvt. Ltd. (supra) are not identical. 3. Plaintiff had a mere right to use the premises and was never in possession thereof. 4. Mere acceptance of licence fee subsequent to revocation of licence would not mean that NDMC had extended the term of licence. 5. Internal noting cannot be treated as a decision of the Government. 6. Plea of discrimination with all material particulars has not been taken in the plaint. 7. 1999 NDMC Policy deals with rehabilitation markets and not with commercial properties/complexes like restaurants. 8. Licence granted to the plaintiff would be insulated from the tentacles of any statutory law or policy and would be beyond the reach of any restrictive provision contained in the same. 9. Section 141(2) of the NDMC Act mandates that any immovable property belonging to NDMC is to be sold, leased, licensed or transferred on consideration which is not to be less than the value at which such immovable property could be sold, leased, or transferred in fair competition. 10. Expression ‘transfer’ is of wide amplitude and the definition of transfer under Income Tax Act cannot be imported into the NDMC Act. 11. Policy to be legal and valid has to be in conformity with the statute.

Issues: 1. Whether the plaintiff had a vested right to seek extension/renewal of the licence? 2. Whether the NDMC Estate Policies of 1999 and 2000 were applicable to the present case? 3. Whether Section 54 of the Easement Act, 1882 applied to the present case? 4. Whether the internal notings of NDMC officials could be treated as a decision of the Government? 5. Whether the plea of discrimination was maintainable in the present case? 6. Whether the 1999 NDMC Policy dealt with rehabilitation markets and not with commercial properties/complexes like restaurants? 7. Whether the licence granted to the plaintiff would be insulated from the tentacles of any statutory law or policy? 8. Whether Section 141(2) of the NDMC Act mandated that any immovable property belonging to NDMC is to be sold, leased, licensed or transferred on consideration which is not to be less than the value at which such immovable property could be sold, leased, or transferred in fair competition? 9. Whether the expression ‘transfer’ is of wide amplitude and the definition of transfer under Income Tax Act cannot be imported into the NDMC Act? 10. Whether a policy to be legal and valid has to be in conformity with the statute?

Ratio Decidendi: 1. Clause 1 of the licence deed confers absolute discretion upon the licensor-NDMC to decide whether to renew the period of licence or not. 2. Mere acceptance of licence fee subsequent to revocation of licence would not mean that NDMC had extended the term of licence. 3. Internal noting cannot be treated as a decision of the Government. 4. Plea of discrimination with all material particulars has not been taken in the plaint. 5. 1999 NDMC Policy deals with rehabilitation markets and not with commercial properties/complexes like restaurants. 6. Licence granted to the plaintiff would be insulated from the tentacles of any statutory law or policy and would be beyond the reach of any restrictive provision contained in the same. 7. Section 141(2) of the NDMC Act mandates that any immovable property belonging to NDMC is to be sold, leased, licensed or transferred on consideration which is not to be less than the value at which such immovable property could be sold, leased, or transferred in fair competition. 8. Expression ‘transfer’ is of wide amplitude and the definition of transfer under Income Tax Act cannot be imported into the NDMC Act. 9. Policy to be legal and valid has to be in conformity with the statute.

Final Decision: The present application is dismissed and the interim arrangement, if any, stands vacated.